The Case Overview
The Fair Work Commission (FWC) recently tackled a dispute that underscores the complexities of casual employment relationships. The case involved a cook who had been employed casually at a café since July 2023. In February 2024, the worker informed her employer about a back injury that rendered her unfit for work. She provided medical certificates that covered her absence until April 16, 2024.
On April 15, the worker texted her employer about an upcoming appointment to get medical clearance for her return to work. This message led to a series of communications between the two parties, culminating in the worker believing she had been dismissed.
Dispute Details
The central issue before the FWC was whether the worker had been dismissed within the meaning of the Fair Work Act 2009. This determination was crucial for deciding if the FWC had jurisdiction to hear the worker’s general protections application.
The worker’s belief in her dismissal was based on:
– Being removed from the employer’s payroll system (MYOB).
– Lack of explicit confirmation from the employer that she still had a job.
– An electronic mail from the company wishing her “right good fortune with destiny employment.
The employer, however, argued that no dismissal had occurred. They explained:
– Removing personnel from MYOB all through prolonged departure became widespread practice.
– They had asked for a face-to-face dialogue approximately return-to-paintings arrangements, which the employee declined.
– The “good luck” message was sent because they believed the worker no longer considered herself employed.
The Medical Leave Context
On April 15, the worker texted her employer: “Hey [employer], quick update. I have a Dr appointment later this week for a return to work cert. Will be pumped to get returned into the kitchen the following week. She additionally asked for an evaluation of beyond timesheets and payslips because of alleged discrepancies.
The employer responded with surprise, indicating they hadn’t heard from the worker in six weeks and didn’t expect her return. This led to further text exchanges where the worker clarified her intention to return, and the employer questioned the timeline and requested more information.
Communication Breakdown
The FWC noted a clear breakdown in communication between the parties:
> “It is regrettable that the [worker] rejected [the employer’s] request for a direct discussion as it might have provided an opportunity for both the [worker] and [employer] to clarify their respective understanding and intentions. It is likewise regrettable that [the employer] did now no longer truly disabuse the [worker] of her perception that she was dismissed.
This observation highlights the importance of clear, direct communication in employment relationships, especially when dealing with sensitive issues like extended leave and return-to-work arrangements.
The FWC’s Decision
After reviewing the evidence, the FWC determined that no dismissal had occurred. The Commission found:
> “Insufficient evidence to conclude that at the date of the alleged dismissal the [employer] had made clear to the [worker] that it would no longer offer her casual engagements.
The FWC additionally referred to that even supposing a termination had occurred, it become now no longer on the whole because of the employer’s actions:
> “If it were accepted in the alternative that the employment relationship has been terminated, for the [worker] to succeed it would require a finding that the action of the corporation became the fundamental contributing thing that caused the termination of the employment relationship. I am unable to conclude in the circumstances of this case that the principal contributing factor to the dismissal of the [worker] was the conduct of the [employer].
Key Takeaways
This case highlights the significance of thinking about all elements while figuring out whether or not a dismissal has occurred, in particular in informal employment relationships. Clear and direct communication is crucial, particularly during periods of extended leave or when discussing return-to-work arrangements. The decision underscores the need for both employers and employees to maintain open lines of communication to avoid misunderstandings and ensure a mutual understanding of employment status and expectations.
Disclaimer: The information provided in this blog was accurate at the time of writing and is intended as general advice. For specific advice, please call AHR on 1800 577 515.
